INDUSTRIAL COURT OF MALAYSIA CASE NO: 26(18)/4-2404/2004 BETWEEN SYARIKAT MALAYSIA WOOD INDUSTRIES SDN BHD AND KANAPADDY GOPAL AWARD NO: 897 OF 2009 Before Venue : AHMAD TERRIRUDIN BIN MOHD SALLEH CHAIRMAN (Sitting Alone) : Industrial Court Malaysia, Kuala Lumpur Date of Reference : 18.08.2004 Dates of Mention : 08.03.2005, 05.04.2005, 08.05.2006, 08.09.2006, 16.06.2006 & 17.07.2006 Dates of Hearing : 08-09.06.2006 & 02-03.08.2007 Representation : For the Claimant - S Sureiander; M/s S Sureiander & Associates For the Company - Shalani Devi; Persekutuan Majikan Majikan Malaysia 1
Reference: The reference of the Honourable Minister of Human Resources, Malaysia is regarding the dismissal of Encik Kanapaddy a/l Gopal ( the claimants ) by Syarikat Malaysia Wood Industries Sdn Bhd ( the company ) on 27 June 2002. AWARD (NO. 897 OF 2009) The parties to the dispute are Kanapaddy A/L Gopal ( the claimant ) and Syarikat Malaysia Wood Industries Sdn Bhd ( the company ). The dispute between the parties arose out of the dismissal of the claimant by the company on 27 June 2002. Brief Facts of The Case The claimant joined the company as a General Worker on 15 February 1978. However, vide a letter dated 10 June 2002 the claimant was suspended from employment with half pay and was asked to attend a Domestic Inquiry (DI) in respect of four misconducts alleged to have been committed by the claimant on 6 June 2002. The said alleged misconducts are as follows (page 10 of COB): 2
l0hb Jun 2002 Nama : Kanapaaddy a/l Gopal, Index no : 490 Seksyen : LP Rough-Mill Encik Kanapaddy, PER: PENGANTUNGAN KERJA Anda telah di tuduh melakukan kesalahan-kesalahan seperti berikut pada 6-6-2002 jam lebih kurang 3-00 petang. 1. Memandu forklift secara laju dan merbahaya menyebabkan berlakunya pergaduhan dan bertumbuk dengan rakan sekerja anda. 2. Bergaduh dan bertumbuk dalam kawasan kilang. 3. Enggan menerima arahan yang diberi mengikut dengan kepentingan disiplin dan kemudian berkelakuan yang berkemungkinan membahayakan nyawa atau keselamatan seseorang. 4. Mengugut untuk membunuh rakan sekerja dan pekerja kilang. Olih kerana perbuatan tersebut diatas adalah salah di segi undang-undang dan peraturan syarikat, anda di kehendaki memberi sebab-sebab secara bertulis mengapa tindakan tatatertib tidak bolih diambil terhadap anda selewatnya empat belas (14) hari dari tarikh surat ini di keluarkan. Dengan ini juga dimaklumkan bahawa perkhidmatan anda adalah digantung dengan separuh gaji mulai 10-6-2002 sehingga 23-6-2002 untuk tujuan diatas. Anda selanjutnya di kehendaki datang untuk perbicaraan dalaman iaitu Domestic Enquiry di pejabat ini pada 24-6-2002 jam 9.30 pagi. Sekian, harap maklum. 3
Yang benar, FOR SYARIKAT MALAYSIA WOOD INDUSTRIES SDN BERHAD sila akui penerimaan surat ini t.t... t.t PERSONNEL DEPARTMENT s.k. Fail no : 490 SL Lee.. Kanapaddy a/l Gopal Ind no: 490 Lp R/Mill Vide a letter dated 26 June 2002 the claimant s employment was terminated effective from 27 June 2002. The Issues The issues for determination before this court are as follows: (a) (b) Whether the company had proved its case against the claimant on the charges for which it charged the claimant; and Whether the dismissal of the claimant was with just cause or excuse. 4
The Law In Goon Kwee Phoy v. J & P Coats (M) Bhd [1981] 2 MLJ 129, Raja Azlan Shah G (Malaya) (as he then was), at page 136, laid down the following principle: Where representations are made and are referred to the Industrial Court for inquiry, it is the duty of the court to determine whether the termination or dismissal is with or without just cause or excuse. If the employer chooses to give a reason for the action taken by him, the duty of the Industrial Court will be to enquire whether the excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be that the termination or dismissal was without cause or excuse. The proper enquiry of the court is to reason advanced by it and that court or the High Court cannot go into another reason not relied on by the employer or find one for it.. The above principle was followed in the case of Milan Auto Sdn Bhd v. Wong She Yen [1995] 4 CLJ 449. The burden of proof to justify dismissal lies on the employer for he knows why he in fact dismissed the employee (see: Union Construction Allied Trades Technicians v. Brain [1981] 1 ILR 224). The employee must prove 5
the employee guilty, and it is not the employee who must prove himself not guilty (see: Stamford Executive Centre v. Puan Dharsini Ganeson [1986] 1 ILR 101 (Award No. 263 of 1985). To discharge his burden of proof, the employer must adduce cogent and convincing evidence, whether oral or documentary, to prove the facts and circumstances which he contends just cause or excuse for dismissing the employer. The standard of proof is on a balance of probabilities (see: Blue Apparels (M) Sdn. Bhd. v. Vickneswaran Ramanathan [1997] 3 ILR 803 (Award No. 552 of 1997). The legal position here is also well-stated as per Halsbury s Laws of Malaysia, vol. 7 at pp. 120.090-120.0921, as follows: The burden of proving that the dismissal of a workman is with just cause or excuse is on the employer. The standard of proof is on the balance of probabilities. The employer must convince the Court that the punishment was proportionate to the nature and quality of the alleged wrongdoing... The following reasons can constitute just cause or excuse for dismissal: (1) (2) (3) misconduct by the employee; (4) 6
misconduct connotes to conduct that is inconsistent with the fulfillment of the express or implied conditions of service. Some examples of types of misconduct are..., wilfully disobeying lawful and reasonable orders or precedents,... unprofessional conduct and breach of company policy..., using violence on superior or coemployee... Misconduct refers to conduct so seriously in breach of the accepted practice that, by standards of fairness and justice, the employer should not be bound to continue the employment (see Syarikat Kenderaan Melayu Kelantan Sdn. Bhd. v. Transport Workers Union[1990] 1 MLJ 5). Company s Case The Company called 8 witnesses. COW1 is Ong Pooy Mooi who was the Human Resource Officer at the material time. She testified through her witness statement (COWS-1) that after conducting the investigation the company suspended the claimant and one Chua Chin Huat (COW5). In this incident, COW1 said that COW5 was only charged for fighting in the factory premise and the claimant was charged with 4 charges as stated in page 10 of COB. Mohd Hassan b. Rejab is COW2. As in his witness statement (COWS-2), COW2 said as a glue supplier to the company he knew the claimant and was at the factory about 3 to 4 times a week. He further stated that he knew about the misunderstanding between the claimant and COW5. On that day he said while he was in the production 7
area suddenly he heard a loud noise from the forklift and when he turned to his left he saw fire sparks caused by the fork being dropped from the said forklift. He further said that the forklift which was driven by the claimant was following COW5 from the back and after overtaking COW5 the forklift at a high speed left the place and the distance between the claimant and COW5 at that time was about 5 ft. Then, he said COW5 came to see him and complained about the conduct of the claimant. COW2 clarified that the forklift was following COW5 for about 10 ft with its fork grazing the floor. COW3 is Ragunathan a/l Rengasamy who was the technician of the company stated in his witness statement (COWS-3) that on 6 June 2002 at about 2.45 pm he suddenly heard somebody was shouting that there was a fight in the Production Floor (Block D) and he saw the Operation Manager one Lee Soo Lee (COW6) near the workshop was asking for his help to stop the fight. He then said upon seeing the fighting between the claimant and COW5 he pulled COW5 to the workshop and later he knew that COW6 pulled the claimant to the shelter side of Block D. According to him a few minutes later he saw the claimant was holding a long piece of solid iron and walking towards COW5. He further stated that he ran towards the claimant and upon seeing that the claimant was holding 2 ft long planner knife he snatched the knife from him and tried to calm him down. The company s fourth witness is Zurimi bin Abd Hadi (COW4) through his witness statement (COWS-4) supported the evidence of COW2 and further stated that about 30 ft from where he was standing he saw the claimant was talking to COW5 and saw the claimant went into the production and came out angrily with a cutter measuring 8
about 2 ft long and was going towards the Maintenance area. After that he saw COW3 was trying to stop the claimant. COW5 who was the Maintenance Supervisor at the material time in his witness statement (COWS-5) related his version of the incident on 6 June 2002 that at about 2.45 pm after repairing the machines in Block D Lamination Line he walked to the workshop in the maintenance section. He further stated that he approached COW2 and at that time he claimed that the claimant was driving the forklift at a high speed and in a dangerous manner. COW5 further claimed that the claimant drove the forklift close to him and dropped the fork to the ground causing sparks and loud grinding sound that startled the other workers. He alleged that he was shocked and frightened. COW5 then proceeded to the workshop and telephone COW6 to inform him about the incident. After that COW5 said he went back to Laminating Line to collect his test pen and on his back to the work he alleged the claimant who was driving the forklift reversed and blocked his path. He further alleged that the claimant refused to move his vehicle to let him pass through. COW5 waited for the claimant to move but instead he said the claimant looked at him angrily. The claimant also he said stared at him and showed his leg and wanted to kick him. As such, COW5 said he pulled the claimant leg and there was a scuffle between them. The claimant according to COW5 jumped from the forklift and tried to strangle him but he managed to free himself. Upon freeing himself, the claimant said he hurriedly walked to the workshop but suddenly he saw the claimant was pulling a piece of wood from a rejected tied bundle. COW5 said he was frightened that the claimant was going to hit him with it so he rushed 9
towards him and tried to take it away and at the time they were grappling with each other. He agreed that at that time COW6 and COW3 came to the scene and separated them but a few moments later he saw the claimant with a 2 ft long planner knife was heading towards him and at the same time was shouting Chua you keluar, saya mahu bunuh hang.. In his witness statement COW5 agreed that COW3 ran towards the claimant and snatched the knife from hand of the claimant. COW6 in his witness statement (COWS-6) confirmed that on the day of the incident he received a phone call from COW5 informing that the claimant was driving the forklift at a fast speed and also dangerously as if the claimant had the intention to injure him. After the phone call COW6 then said he went down to Block D which is in the Production area and while he was walking he said another employee a production supervisor yelled that there was a fight at the back of the production floor. COW6 said he went to the scene of the commotion and saw the claimant was fighting with COW5. Then COW6 yelled and called COW5 to help him to stop the fight: by pulling the claimant to the shelter next to the tank while COW5 was pulled by COW3 to the maintenance sector. However, he said when he pulled the claimant he shouted angrily and told that he was punched by COW5. The claimant also told COW5 thought he purposely blocked his way but actually because the forklift has three gears so it will take sometime to move and he has to press the pedal hard before the forklift could move. In his witness statement also COW6 did mention that the claimant at: that time also uttered that this time he will not settle the problem between them and he yelled that one of them have to die. After that while he was on his way to 10
talk to COW5 at the maintenance department, COW6 heard someone was screaming Kana datang dengan pisau and when turned he saw the claimant was walking towards the maintenance office holding a 2ft planner knife. However, COW6 confirmed that the claimant did not attack COW5 but while walking towards COW5 the claimant shouted Chua keluar sekarang sebab saya nak bunuh awak. Then COW6 stated that he pushed the claimant away while COW3 snatched the planner knife from the hand of the claimant. While pulling the claimant to Block D COW6 alleged that the claimant continue to scream that he will kill COW5 today. He also said that he will wait for COW5 until 4.30 pm. Even after the commotion, COW6 claimed that the claimant reminded him of the coke bottle story where COW6 said two weeks ago the claimant told him that he could stab COW5 with a broken Coke bottle anytime and there are 5 ways he could kill the claimant. Lim Eng Guan (COW7) who was the claimant s colleague in his with witness statement (COWS-7) confirmed that on 6 June 2002 there was a fight between COW5 and the claimant and he also saw COW6 was trying separate them to stop the fighting. He further stated that after COW5 went back to the workshop he saw the claimant suddenly came to the outside of the workshop with a knife and at that time the claimant was shouting for COW5 to come back. COW7 then asked COW5 not to come out from the room. COW8 is the Cheng Eng was the Senior Technician at the material time. In his witness statement (COWS-8) he claimed that when the incident took place he was in his workshop. He further stated that he heard a noise and shouts so he went out and saw the claimant 11
standing with COW5. He further explained that at the material time the claimant was shouting loudly and was holding a blade about 2 ft in length. In her written submission, representative for the company submits that the claimant gave false evidence and there were also inconsistencies in his evidence especially the evidence in the court and his reply to the show cause letter. It was further submitted that the claimant did admit in court that his reply letter to the show cause after the incident is the correct version. Claimant s Case In this case, the claimant had another witness that is Murugiah a/l Kuppu. In his written witness statement (CLWS-1), he said that at the material time he was the forklift driver for the company. He further stated that on the day of incident he was not working but he said generally the speed of the said forklift in the factory is about 5 km/ph. He denied that the fork of the forklift can be dropped suddenly. This is because it uses hydraulic system. It is also in his witness statement that the said forklift produced loud engine sound. This is because since the forklift is heavy you have to press hard the oil. In his witness statement (CLWS-2), the claimant testified that with regard to the first charge he denied that he was driving the forklift at a high 12
speed. This is because at the material time the forklift was carrying 4 tons of weight and cannot be driven fast. He further explained that the maximum speed of the forklift was about 10 km/ph only and the forklift path was also used by the employees of the company. The path is also narrow with things of both sides. Pertaining to the dangerous driving, the claimant said the forklift s brake was not so effective and in order to stop or to slow the forklift it is normal to drop the fork of the forklift and this will produce a loud sound. He further said that the forklift did not have any horn. According to the claimant to move the forklift you will need to press hard the oil and this will produce a loud sound. This is because the forklift was heavy. On the day of the incident, the claimant admitted that he dropped the fork of the forklift to slow down the forklift because he saw COW5 was entering into his path and to give him warning that he was coming from his back. The claimant denied that he did intend to surprise COW5 or even to cause panic to him. At that time he said that the speed of the forklift was about 5 km/ph and he also did not agree that the fork of the forklift can be dropped suddenly. This is because the fork can only be dropped slowly using hydraulic system and generally when the forklift is driven the said fork will be dropped nearing to the floor. As for the second charge, the claimant said at the material time he was driving the forklift on the reverse side and while he was looking back he saw COW5 suddenly appeared so he stopped the forklift immediately and gave way to him. However, the claimant claimed that COW5 suddenly came to him and punched and pulled him from the forklift, As a result, the 13
claimant claimed that when he was about to fall down from the forklift he had to hold on to COW5 and during this scuffle he was kicked, punched and stepped by him. The claimant admitted that for self defence purposes during the scuffle he did punch COW5. The claimant did not agree that he took a piece of wood to hit COW5. He claimed that at the time a woman employee by the name of Haslinda did witness the said incident. As for the third charge, his version in his witness statement was that after the fight was separated by COW6 and COW3 he was brought near to the water tank where he had his drink and sat there for about 15 minutes. After the situation back to normal the claimant said he returned to his forklift to continue his work but he found out that the p l a n n e r k n i f e t h a t w a s used to cut the rope for the bundle was missing from the forklift so he went to take the planner knife and returned to his forklift. However, on his way back to his forklift COW3 came to him and hold him. At that time he said COW6 uttered the word relax to him and COW3 took the knife from him. The claimant alleged that he did not resist when COW3 took the knife from him except to request COW3 to let him go. At that time also he realised that they thought that he took the knife to threat COW5. The claimant in his witness statement denied that he did intend to kill or to cause hurt to COW5. To support his contention, the claimant said at that time he does not know the whereabout of COW5.The claimant also alleged that the said incident was planned earlier. This is because he was puzzled with the presence of COW6 during the fighting. Further, according to him COW6 had threatened to sack him few times. The claimant strongly 14
denied that he said he will stab COWS with the coke bottle, This is because the said coke bottle was a plastic bottle and it is not logic to stab someone with a plastic bottle. In his submission, counsel for the claimant submits that there is no direct evidence to support that the claimant at the material time was the driving the forklift in a dangerous manner. This is because both COW2 and COW5 did not see how the claimant drove the said forklift and they only heard the sound of the fork being dropped from the forklift. As for the second charge, the counsel submits that the claimant was acting in self defence and COW5 in his evidence did a d mi t t h a t h e started the fight. The counsel also urged the court to incoke section 114 (g) of the Evidence Act 1950 against the company for not calling Haslinda. This is because the claimant alleged that she witness she said incident but the company did not produce her in court. Regarding the third charge, it is the submission by the counsel for the claimant that if it is true that the claimant did try to kill COW5 why did surrender the planner knife without any resistance? The counsel also did not agree that the claimant had threatened to kill COW5 since COW3 s evidence is doubtful. This because at first during cross-examination COW3 agreed that the claimant did not utter those words when he took the knife from him but in re-examination he changed his mind and confirmed that the claimant did try to kill COW5. 15
Evaluation and Findings The court will now deal the each of the charge. Charge No. 1 The misconduct in this charge centers around the alleged speeding and dangerous driving of the forklift by the claimant. After perusing the evidence as a whole and testimonies of the witnesses in particular COW5, COW2 and COW4, the court finds that on the balance of probabilities the company has proved that the claimant did commit the said misconduct. This is because firstly, the evidence of COW5 is corroborated by COW2 and COW4 who saw what actually happened. Secondly, the court finds that their written testimonies regarding the incident are convincing, consistent and not contradicting with each other. Therefore, the court accepts that the company s version that is on the day of the incident the claimant was driving the forklift at a high speed in a dangerous manner, This is because the claimant drove the forklift closed to COW5 and dropped the fork which caused fire spark and loud grinding sound. Further, from the evidence it is also stated that that after overtaking COW5 the claimant drove the forklift at a high speed. Thirdly, the court believes the evidence of COW2 since at the material time he was not the employee of the company he was an independent witness. In court s view he has no vested interest in this matter. There is no reason for him to lie. Fourthly, the court finds that the claimant had not succeeded in refuting the company s evidence. The claimant did not deny that on that day in question he drove the said 16
forklift. Although the claimant claimed that the fork was dropped because to warn COW5 since the forklift did not have any horn but at the same time the claimant also said the forklift produced a loud engine sound. As such, the court agrees with the representative of the company that if the engine of the forklift is loud there is no reason for the claimant to further drop the fork to warn COW5. To further support this finding, the court also finds that the claimant during cross-examination agreed that the forklift did produce a loud engine sound. The court also accepts that the claimant did intend to harm the COW5 because COW2 said after the claimant overtook COW5 the fork was pushed up. Fifthly, in this case also, it is difficult to believe the claimant s testimony because in his written reply to the show cause (pages 11 and 12 of COB) he said he dropped the fork the alert COW5 but during cross-examination twice he denied that the fork was dropped to warn COW5. Once again, based on the above, the court on the balance of probabilities finds the company has proved the fact that claimant did drive the forklift at a high speed and in a dangerous manner. Charges No: 2, 3 and 4 As for this charge it is pertinent to note that it falls upon the court to inquire into all aspects of the fight. In Steelform Industries Malaysia Sdn. Bhd. v. Foo Fook Ban [1991] 1 ILR 442 (Award No. 127 of 1991) the learned chairman observed: 17
Material facts and relevant evidence in any case of assault or fighting should include the causes, reasons and motives that led to the fight to determine the various degrees of culpability of the persons involved in the fight, and if there is any justification to exonerate the innocent victim.. In this case, after evaluating both the evidence of the company through the evidence of COW 5, 6 and COW 3 and the evidence of the claimant, on the balance of probability, this court finds it difficult to accept that COW 2 and COW 6 would concoct a story to frame up the claimant. This is because, COW6 and COW2 did not play any part in the fight and both of them in their written statements consistently said they saw the fight and were there to separate COW5 and the claimant. Now the question is, who started the fight? The court notes that none of the other witnesses actually saw how the incident started and they only came into the picture after the fight had actually started. As such, it is from the two different versions that the court will have to decipher the truth of the story. In this regard, the court after scrutinizing thoroughly the evidence of the both parties doubts the evidence of the claimant. This is because in his written statement evidence he said while driving the forklift on the reverse side he saw COW5 so he immediately stop his vehicle to give way to COW5 but C O W 5 immediately came and punched him. However in his written reply to the show cause letter the claimant did not mention about stopping the forklift to give way to COW5. The court also finds that it is not logic to claim that COW5 punched the claimant on the forehead. This is because if 18
it is true that the claimant stopped the forklift to give way to COW5 surely he had COW5 in his full view and would seen the COW5 s action or conduct. It is the opinion of the court also that even if the claimant claimed that COW5 did strike a blow on his forehead his immediate reaction at the material time was to avoid the alleged punched since he had COW5 in his view. Further, in his written evidence the claimant said the punched had caused him to fall down from the forklift but in his reply to the show cause letter he wrote that after being punched by COW5 he alighted from the forklift. Based on the above, it is the finding of this court that the above discrepancies in the claimant s testimony are major and the court is satisfied that the claimant is not a truthful witness. As such his evidence has to be treated with great caution. On the other hand, the court finds that the written evidence of COW5 is consistent with his statement given during the investigation carried out by the company (page 5 of COB). Further, it is relevant to note that this written statement was given soon after the incident so the chances of fabrication is minimal. In this case also the claimant s counsel also submits that Haslinda should be called by the company as a witness to prove that it was not the claimant who started the fight. The counsel for the claimant cited section 114 (g) of the Evidence Act 1950 to be drawn an adverse inference against the company. In court s view the presence of Haslinda could only testify to 19
the same facts which had been sufficiently established by the company s evidence. Regarding the presumption under section 114(g) of the Evidence Act 1950, textbook Evidence - Practice and Procedure, 2nd. Edition by Augustine Paul where the learned author has stated at p. 785 as follows: The presumption will not arise for not calling a witness if there is sufficient other evidence in support of the prosecution. There is also no question of withholding or suppression of material evidence by the company to attract an adverse inference to be drawn. In this regard Seah SCJ in the Supreme Court case of Munusamy v. Public Prosecutor [1987] CLJ 221 (Rep); [1987] 1 CLJ 250; [1987] 1 MLJ 492 held:- It is essential to appreciate the scope of section 114(g) lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but material document by a party in his possession, or for non-production of not just any witness but an important and material witness to the case. In Sarkar s Law of Evidence 15th Edition 1999 at pa. 1678, it is stated:- 20
If a party in possession of the best evidence which would throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that onus of proof does not lie on him. [National Insurance Co, Lid v. Kusum Devi Mishra, 1998 AIHC 3751, 3753]. (see also: Bax Global (Malaysia) Sdn Bhd v. Saravanan Rajagopal [2007] 3 ILR 434 (Award No. 1294 of 2007)) In EON Bank Bhd. v. Hotel Flamingo Sdn Bhd [2005] 5 CLJ 253 at p. 259, Y.A. Low Hop Bing J stated the following on the onus of proof :- On the other hand, the onus of proof relates to the responsibility of adducing evidence in order to discharge the burden of proof. The onus as opposed to burden is not stable and constantly shifts during the trial from one side to the other according to the scale of evidence and other preponderates. Such shifting is one continuous process in the evaluation of evidence. According to ss. 102 and 103 of the Evidence Act, if the party with whom the onus lies whether initially or Subsequently as a result of its shifting does not give any or further evidence or gives evidence which is not sufficient, such party must fail: per Salleh Abas FJ. (later LP) in delivering the judgment of the Federal Court in International Times, supra at p. 87. 21
(see also: International Times & Ors v. Leong Ho Yuen [1980] 2 MLJ. 86 FC) In this case it may be observed that since the claimant has denied that all the allegation being put forward by the company against him the onus is on him to give any or further evidence or give evidence which is not sufficient. Therefore, if at all an adverse inference under section 114(g) is to be drawn, it indeed works against the claimant. Notwithstanding this, this Court as a Court of arbitration 1 will abide by the principle laid down by the Court of Appeal in Telekom Malaysia Kawasan Utara v. Krishnan Kutty a/l Sanguni Nair & Anor [2002] 3 MLJ 129 where it was held, inter alia:- Held. (1) The Industrial Court should not be burdened with the technicalities regarding the standard of proof, the rules of evidence and procedure that are applied in the court of law. The Industrial Court should be allowed to conduct its proceeding as a court of arbitration, and be more flexible in arriving at its decision, so long as it gives special regard to substantiate merits and decide a case in accordance with equity and good conscience. Based on the abovementioned of the evidence adduced the court is of the view that the company on the balance of probabilities had succeeded in proving the 2 nd charge against the claimant. 22
As regards to the charges no.3 and 4, the claimant claimed that after the scuffle he did seat at the place he was brought to and came back to work only after 15 minutes. Pertaining to the planner knife the claimant told the court that after returning to the forklift he found out that the planner knife which he normally used to cut the rope for the bundle was not there so he went to the place where the said knife was normally kept and took. However, he claimed that on the way back to his forklift COW3 came to him and took the knife and he did not resist. The court after carefully weighing the evidence tendered in this case finds that claimant s version cannot be the truth. This is because the court notes that COW2 and COW7 who were not involved in the incident also consistently agreed with COW3 and COW6 said they saw the claimant walking towards the maintenance office holding a 2 ft long planner knife and shouted at COW5 to come out from his workshop. As such, the court finds that the claimant had disobeyed the instruction given by COW6 and went to commit the threatening conduct against his fellow worker. Thus, in light of the above the court finds on the balance of probabilities that the third and fourth charges against the claimant are also proven. The next issue to consider is whether the claimant s dismissal was with or without just cause or excuse. The court is also of the view that an assault on a fellow employee is a serious misconduct. In Cik Tan Swee Gek v. FE Zuellig (M) Sdn Bhd [1980] MLLR 329 the court said as follows: 23
There are a number of decided cases which held that a single incident of on offence of assault could justify a harsh penalty of dismissal. In Fermlinson v. L.M.S. Rhy [1944] 1. All ER 537, the Court of Appeal held that the employer was justified in dismissing a worker summarily for assaulting a fellow worker. The court further finds that the company was no longer repose the necessary trust and confidence in the claimant to carry out his duties and responsibilities in a faithful and diligent manner with the company. For the above considerations, this court holds that the company had dismissed the claimant with just cause and excused. Accordingly, the claimant s claim is dismissed. HANDED DOWN AND DATED THIS 23 JULY 2009 (AHMAD TERRIRMDIN BIN MOHD SALLEH) CHAIRMAN INDUSTRIAL COURT 24